Binding Financial Agreements (commonly known as pre-nuptial agreements) are becoming increasingly common in relationships. If you have reached an agreement between yourself, your current partner or your ex-partner, we can help you prepare a Binding Financial Agreement. The type of agreement would depend on the situation you are currently facing.
The Family Law Act 1975 authorises parties who are married or in a de facto relationship to create a legally binding agreement in relation to property, finances, superannuation and spousal maintenance to be applied if their relationship should end.
What do Binding Financial Agreements Do?
Binding Financial Agreements allow parties to make an agreement in relation to their finances. Ultimately, they are intended to ensure parties do not have to commence proceedings to work out property and financial matters.
A Binding Financial Agreement created by the two parties alone will not be legally binding. For Binding Financial Agreements to come under the scope of the Family Law Act, both parties must have signed the agreement after receiving independent advice about the nature and scope of the Binding Financial Agreement. This must include independent legal and financial advice.
For this reason, it is vital you speak to a family lawyer before creating a Binding Financial Agreement. In addition, your lawyer can assist in the creation of the Binding Financial Agreement to remove any possible loop-holes and ensure the Binding Financial Agreement is contractually sound and fair to both parties.
The types of agreements vary depending on which stage in your relationship you are at.
Before a Relationship:
- Section 90B – Financial Agreements before Marriage
- Section 90UB – Financial Agreements before De Facto relationship
During a Relationship:
- Section 90UC – Financial Agreements during De Facto relationships
- Section 90C – Financial Agreements during Marriage
At the End of a Relationship:
- Section 90D – Financial Agreements after Divorce Order is made
- Section 90J – Termination Agreements
- Section 90UD – Financial Agreements after breakdown of a De Facto Relationship
- Section 90UL – De Facto Termination Agreements
- Section 90MH – Superannuation Agreements for Marriages
- Section 90MHA – Superannuation Agreements for De Facto relationships
- Section 90UE – Agreements made in non-referring States that become Part VIIIAB financial agreement
A Binding Financial Agreement is prepared depending on your facts and circumstances, and the private settlement terms that have been arrived at. We place due care on understanding the facts at hand, your circumstances and your situation so that we can prepare the right Agreement for you.
The Binding Financial Agreement could be challenged and set aside if this isn’t done correctly.
When can a Binding Financial Agreement be set aside?
A court can set aside a BFA for several reasons authorised by section 90K of the Family Law Act. These can include:
- Fraud: this includes non-disclosure of some material matter that de-frauds the other party
- To avoid creditors: where it is found that the agreement was for the purpose of defrauding creditors
- Void or unenforceable: due to a contractual principle such as:
- public policy,
- undue influence,
- waiver, or
- Impractical: where the parties’ circumstances have changed since the BFA was entered that would make applying the BFA impracticable
- Hardship due to children: if a material change in circumstances has arisen that relates to the welfare or care of a child of the relationship and the child, or the responsibility of caring for the child, will cause hardship
- Unconscionable conduct: if one or more parties has engaged in unconscionable conduct
- Other parties’ interests: To protect the interests of parties in other relationships with a party signing the financial agreement
To avoid the same, we can ensure that we provide you with the advice on the best Binding Financial Agreement that should prepared, based on your circumstances.